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Wednesday, March 23, 2011

Username

I got some bad news yesterday. I've received a letter asking to close down my shop that I've had on Etsy since 2007, which in internet years is ancient. The problem is with the username I have.

How it started was when I was in hospital. That was the absolutely worst time of my life and I was grasping at straws to keep my mind going. I was being blasted with the worst chemotherapy and was on a cocktail of drugs to keep me alive while the transition happend in my body from my bone marrow transplant.

Then in an art article online I read someone describing some artwork as "____ _____". I started looking all over the web to see if anyone else was using the name or had the dot com. There was a bespoke photography company in England that had the wallcandy.com so I registered its_________.com

I thought it was a perfect way to describe the colourful paintings I had been selling through a gallery. The paintings were of fruit with bright backgrounds and they sold like hotcakes. When I was home and well enough, 2007 I did another search online and didn't find anything new that was using the _____ _____ name. So then I opened my Etsy account.

Etsy saved my sanity on all the dark days that came later. I met amazing people on my very first forum which were the Etsy forums. They were funny creative people and it fed my need for creative stimulation when I was unable to create. I never really got around to seriously using the account for selling because I was too unwell to paint or to ship anything out, so I made sure to only sell things every once in a while.

Well, the friends I made there made me feel so less alone. When I got well enough to get out of bed and get off the laptop, I would then check in at night. Some of those friendships have blossomed and grown but all of them are immensely important to me. You'd be surprised at what small things have huge impact on someone.

So now I have been informed that I am in trademark infringement. Someone who makes something in the USA that is a completely different product wants to shut my shop down. I am a Canadian working out of Canada and our products do not conflict.

If I lose my Etsy username I will lose contact with a lot of people who only know me through that name. Some are on forums some are not. Four years of building goodwill will be gone.

I'm positive that I'm not infringing on their trademark so I will be looking into that today.

*I've finally figured out how to close commenting on this post. I've never had to do that before. I respectfully ask that you do not continue this Trademark debate here on my blog.*

dont cave to the threat as its nothing more then that. unless it comes to you as a lawyers letter on official letter head it cant and wont stand up in court. I have a close friend who has owned snickers.org for over a decade and have yet to ever see follow through on any of the email threats that from Mars Corp... its just some legal nerd trying to exercise his legal muscle over the internet where he does not have a leg to stand on.

The site wallcandyarts.com has had the name since 2002 according to whois domain registration..but that is not your exact name is it on Etsy? Funny how you have used it since 2007 and it just became a problem..hope it all works out okay for you.

You're right. It's a completely different product... and the name isn't the same anyways. And other people are right that it has to come from somewhere official. Etsy can shut down your shop, and probably will (there are reasons I don't sell there anymore), but I doubt anyone would win in court - in fact, you might be able to go after Etsy in court if you wanted to.

I'd take this time to export your .csv data (so you don't lose all that hard work and can easily open another shop on Etsy or another venue) and send a message to everyone you know on Etsy with contact info of some sort - e-mail, facebook page, new url, something. If you send them a new url, sending them a coupon as well might help them follow you.

Technically, sending an e-mail address or a url to another site over the Etsy messaging system is against their policies... but technically taking action on a copyright or trademark issue that isn't your own is illegal.

If there is a real cease and desist order out there somewhere, it should legally make it into your hands, not sit on someone's desk at Etsy.

Things like this could be why they are looking to do the people search thing....but then folks would have to know your name. Your pervious customers will but it the search works like the main etsy search that might no be so good either.

I really do not see thier problem - is their a space in their name making it three distinct words while yours is one - that is not infringement in my book ....but I am not a lawyer -

Oh wow. It looks like the internet has blown up since I was out. I realize this topic has a lot to do with the sake of anyone who is on Etsy. We may do our best to stay within the rules but that still doesn't mean you won't get a knock on your door at some point and told that you're infringing.

I really don't know what to say about this whole thing. I'm not sure how we proceed in a 'global marketplace' where companies can reach across borders and tell people to stop what they're doing.

I have the mind set that there's room for us all.

This seems to be a real hot button of a topic and everyone posting here is so passionate about it.

Just know that I'm okay :) I also hope that no one else has to get caught up in anything like this.

Like you, as a mother and a business owner, I am also passionate about my work. WallCandy Arts is not a huge company. We have one employee -- me. I work from my home so I can also care for my children. I've poured my heart and soul into my business over the last ten years and rely on it to support my family.

I filed a trademark registration for the name ‘WallCandy’ in 2002. As you know, a trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller's products and distinguish them from the products of another. A principal purpose of the trademark laws is to prevent consumer confusion. My trademark is in the class of goods and services that covers wall coverings/hangings not simply decals. You also sell products that hang on or cover walls. My attorney advised me that under US law, not only do I have the right to protect my trademark but I am legally bound to do so or run the risk of losing it altogether.

Etsy is a US based company and is also legally bound to follow US trademark law. Etsy has simply asked you to cease using my trademark on the Etsy website since the website is hosted in the US and serves US customers. Neither Etsy nor I are asking you to stop selling your products in the US, only that you stop using the name “WallCandy” when selling your products. From what I understand, you can still use the name outside of the US to sell your products globally.

On a personal note, I think your work is lovely and hope that you continue making it available on Etsy and elsewhere.

"DECORATIVE PLASTIC WALL COVERINGS AND WALL BOARDERS THAT ADHERE TO A PAINTED WALL SURFACE AND ARE EASILY REMOVED AND REPOSITIONED."

It's right there on the USPTO website. That does not cover framed art hung on a wall. Her art isn't plastic nor does it adhere to a painted wall surface, nor does it have to hung on a wall in the first place.

I am in favour of people protecting their intellectual property, but you are overreaching. It's also very poor form that you went through Etsy without even the courtesy of contacting this WallCandy first. I find your actions exceedingly ugly.

I feel terrible for you. Who do they think will confuse the two of you? Do they sell on Etsy? How can they hold the trademark for 'anything on walls'? I call bull shit and I want to know if you've been LEGALLY served.

what gives YOU the right to come in 4 years later, say she's using your name & tell her to get a new one like its so simple? YOU get a new name. Why do you even want to be on Etsy? Why are you trying to horn in on a site thats for (or supposed to be) for the little guy?

So sick of the bullying Etsy does to the people that have propped it up & made it a success, all in favor of money, resellers, scam artists, & the like.

Allison you are full of it. First of all WallCandy is in Canada, might want to tell your lawyer that. Secondly why is your lawyer letting you speak about this publicly? Third of all why did you change your website? What happened to the other moms?

When it comes down to it you are a bully plain and simple. Have fun at your fulfillment centers!

the thing I wonder about is her actual domain name is wallcandyarts.com so how is it she only trademarked the wallcandy part? I really hope you can get some professional help here as it is not like you just went into business either since you have been around awhile too.

I just saw something that stunned me on her blog and I believe to be a bit unethical..she is invoking the names of celebrities to suggest without actually saying it that their family, love or whatever might be better with her products and making it appear as if they use or used them.. not cool at all to me!

delta airlines, delta faucets, and delta dental all seem to manage to get by without consumer mix ups. They each have a trademark on the delta name as it refers to their scope of work. They are all neatly registered in their different categories. the airline is is transportation and store while the faucet company is in houseware.Whopper is another example. Burger king owns it as does Hersheys. they both make food but one makes burgers sold at fast food joints and the other makes candy sold at grocery stores and movie theaters.trademark of a name is not cut and dry.

This is a difficult issue. I understand protecting the following you have built with the name but I have also been on the side of having to protect a small company. We are not talking about IBM or GE coming after the little guy. I have seen this company's products (I have three little kids). The company is called Wall Candy Arts so “Wall Candy” is a pretty important part of the name. Not the same, but very similar. Its a small company that is probably stretched to the max, especially in the economy we have had these past few years. You can see who they are here http://www.wallcandyarts.com/wallcandy-story.html. I have been on the side of trying to start a business. Started a business with my wife and it is not easy. I am not comparing you to Wall Candy. Your blog is an inspiration and you have an incredible amount of courage to write it. But every dollar spent on marketing or advertising for a small business is really a dollar you don't have. If she is selling online, having the name used elsewhere just makes every dollar spent to market less effective. Literally losing 5% of your sales can really hurt your business to the point where you close. This is real and I went through it. For all of the great things the internet can do for a small business, it makes it that much harder to protect what you are building. To your point about reaching across borders. There are no borders. Just a click or a Google listing away.

I am not taking sides so everyone please don't attack me. I have feelings about this because I have been through it trying to start a business. I want to take your side, but I don’t think it is fair to attack this company. Especially if this is how she feeds her family and keeps a roof over their heads. I don’t know if there is a solution to this that works for everyone. It is hard. Maybe Etsy has some ideas?

I find it incredibly sad and disgusting how people are attacking WallCandy Arts. Is this how we behave nowadays? It is so easy to attack someone via a blog or through the internet. The issue that several people are ignoring is that WallCandy Arts is simply protecting its trademark. WallCandy Arts has been in business since 2002. Baldylocks began in 2007. A simple Google search would have brought up the company and its trademark. It is unfortunate that Baldylocks did not discover the trademark issue before she created her business.

Using the term WallCandy is confusing to consumers looking for WallCandy Arts. She is a small business and every customer counts. She is also required to protect and enforce her trademark. Put yourself in her situation. I don't think that any one of you would just sit back and let someone else use your trademark when it comes to providing for YOUR family. The personal attacks against WallCandy Arts by people who know nothing about the owner, are rather disturbing. I would like to believe that we are all better than this and rather than attacking someone, we try to figure out how both owners can win in this situation. Baldylocks only needs to remove the term "WallCandy" from her domain name and her Etsy site. She can then continue selling her products worldwide. Let's keep this in perspective.

I don't see how anyone looking for wall decals is going to be confused by traditional paintings. also, this wallcandy doesn't own wallcandy.com. is there plans to go after that person too, which by the way they are also in another country, although I believe first in wins in the realm of domain names. I don't know why domain names are coming up. etsy store name is a unique url but it's not really the same as a stand alone domain name. You can't move it off to another server.if you search via google just "wallcandy" wallcandy arts comes up first.

wallcandy arts a small business that sells at walmart, home depot, various online interior decorating sites and more. they are beyond those of us who use a spare bedroom as a studio and office. on the logic side how can one person make all those decals and still have time to spend with their kids and sleep!

One look at her website, and a google search & anyone can see how NOT small her business is. TV, magazines, distribution deals at Walmart, Amazon, a fulfillment center needed because she is so busy? Nope, sorry. A manufacturer, not a small business. Does not belong on etsy.

Plus the trademark that WCA is so intent on protecting is for vinyl decals. WallCandy sells artwork - 2 completely different things.

Etsy who claims its only a venue when it feels like it, saw dollar signs as it so often does nowadays when WCA signed up for whatever reason and has decided to bully a longtime Etsian. This is par for the course for them.

Maybe instead of chastising those of us speaking our about this injustice, you should take a good hard look at yourself & Allison Kongard of WCA & ask why such a Big Company is stomping on a hardworking single mom recovering from cancer.

Dear "sad to be an american"--with all due respect suggest you reread wallcandy post which says:

1. "The trademark is in the class of goods and services that covers wall coverings/hangings not simply decals."

and

2. " I am LEGALLY bound to do so (ie. protect trademark) or run the risk of losing it altogether." Let me repeat that legal part again for you: I am LEGALLY bound to do so...

Funny how nobody stops to think about folks at wallcandy arts and how lost business due to confusion over others using their name - hurts them...or what happens if they let this go and then lose their trademark...

One look at her website, and a google search & anyone can see how NOT small her business is. TV, magazines, distribution deals at Walmart, Amazon, a fulfillment center needed because she is so busy? Nope, sorry. A manufacturer, not a small business. Does not belong on etsy.

In a case of trademark infringement the standard is “likelihood of confusion”. Is it likely that some consumers will be confused by your use of Wallcandy? Paintings versus decals. The two products appear to be close enough to cause confusion but that is a decision for the Judge or Jury. More importantly, in a case of trademark infringement the holder of the trademark is obligated to defend the trademark or lose it. They will have little choice but to sue you for trademark infringement.

What I find odd about this situation is your statement that you did not one but two different searches for Wallcandy on the internet. I just searched on google and came up with the www.wallcandyarts.com website or references to it on a number of different websites. Your website also came up. There is also another company with the web address of http://wallcandy.us/ (a paint and texture company in Chalreston, S.C.). I bet if this new company is offering any products that are likely to cause confusion with the trademark holder’s products they may be getting a letter from a lawyer also.

Bottom line, if the other company registered the trademark in 2002 and a court finds there is some likelihood of confusion between the products each offers the other company is entitled to (1) the defendant’s profits, (2) damages sustained by the plaintiff, and (3) the costs of the action. This is a serious matter and you should talk to a lawyer.

if you googled wall candy in 2006 and 2007 and wall candy arts did not come up, how can you be in trouble NOW for creating a shop THEN using the words wall and candy together? OF COURSE if you google 'wall candy' NOW like the brilliant anonymous did in 2011 'wall candy arts' comes up, as do so many companies that did not five years ago when you google various words together. this is the internet people. there are all sorts of companies that will come up now when googling word combinations that did not come up five years ago.

i think what this really comes down to is losing ownership of the english language, and that is why people are getting so angry at this allison woman. it is not that we regret her feeding and housing her two children or anything, or her healthy body, or that her bone structure is astounding, or that she lives in the hamptons, or that she has a good looking husband to help her rear her offspring, unlike the canadian wall candy, but why is she now the sole owner of the words 'wall candy' even though the two shops are in different countries? does a trademark registration in the usa mean those words are not allowed to be enjoyed by tiny artist shops run out of other countries? and is etsy not meant to facilitate international connections to artists around the world? okay they have their servers in the usa, but people love buying from etsy because it gives them access to international artists and small shop operations. it connects us. does etsy want to mess with that? and what is happening to our language and our right to use and enjoy it and represent ourselves by it?

i think the SPIRIT of trademark law is so that nobody steals your market share by tricking people into purchasing something that the original company makes, thinking that it is a product from the original company, sort of like how knock off cola companies make their graphics on the cans to look almost exactly like a pepsi can, but when you taste the cola, you take a closer look at the can, and realize you have been had.

the canadian wall candy is hardly trying to trick people into buying vinyl decals for home interiors instead of allison's. the canadian wall candy doesn't have any wall decals!! how many sales has this allison lost because people went looking for bedroom wall decals on etsy and ended up buying paintings from the canadian wall candy instead?

what does a trade mark mean? does it mean that a canadian artist can't be called her original name on etsy? i feel quite badly for this allison of wall candy arts. i notice the original wall candy is not the one attacking her. i can only hope that these attacks on allison help bring publicity to her company so that more walls across america can be candied, and that the woman with the best bone structure WINS (as always) that is a social science that i would never dream of messing with.....

ylvakristin, you seem somewhat obsessed by bone structure. You kind of lost the point a little unless you were being sarcastic. Anyway i am confused because i like Wallcandy (the original's) bone structure just fine thank you!

Your story has touched and moved me. Reading all of the loyal your follower's and supporter's posts is proof of your brave spirit and inspiration. You obviously take great pride and care in making your art.

I have been working with Allison Krongard for about 3 years now; I'm her graphic designer. I am obviously biased, but have never had such a amazing client and friend in my 20 years + of working. So it hurts a great deal to read all of the comments posted. She humbly started her business in her kitchen in NYC and has worked tirelessly growing and nurturing her business for about 10 years; very much like a growing child. As the global internet market has exponentially grown in the last decade or so, Allison has had to learn to protect herself from diluting her brand. No easy task to build a brand on your own, literally on her own. As you, she is protecting her livelihood. It has been my experience that we are still learning all of the nuances regarding international copyright/trademark in relation to e-commerce.

Allison has no other choice than to protect herself legally, it is her only source of income. Since inception, she has helped it grow, through good and bad. This is not a personal attack on your character or otherwise, in reading your own comments it is obvious you come from a place of love. You have every right to feel the way you do, I would too. Although, as you know, we are all subject to a country's laws when selling goods or services to its citizens.

I wish you much luck w/ your recovery and your work that has inspired so many.

And to all the naysayers who have posted many negative and derogatory remarks, please think twice about posting something that is meant to hurt and will exist in cyberspace forever.